Superferry ruling could rest on time limit
LIHUE » A Kauai judge said he will rule today on whether he will grant an environmental group's motion to bar the Superferry from traveling to Kauai for 10 days.
Judge Randal Valenciano heard about three hours of argument yesterday before asking lawyers representing the environmental group 1000 Friends of Kauai, the state Department of Transportation and the Hawaii Superferry to prepare briefs on one specific point: the 120-day statute of limitations to dispute the exemption of the Superferry from an environmental assessment.
"Right now the court is still struggling with the 120-day period," Valenciano said. "This is a big issue. This could control the case."
According to the Hawaii Environmental Protection Act, when the state determines an environmental assessment is not necessary, anyone wishing to challenge that decision has 120 days to file a claim in Circuit Court.
In 2005, when the Transportation Department exempted the Hawaii Superferry from the Environmental Assessment process, the Maui Chapter of the Sierra Club filed a challenge. They won on an appeal to the state Supreme Court last month.
But no group from Kauai challenged the order.
State and Superferry lawyers argue that even despite the Supreme Court's ruling that an environmental assessment is necessary, one is not required for Kauai.
"The Supreme Court decision does not mention Kauai or Nawiliwili" anywhere within the 104-page brief, said Lisa Munger, attorney for the Hawaii Superferry.
"There is no private right to enforce someone else's rule," she said.
Lawyers for 1000 Friends, however, argued that because the Transportation Department's exemption was found to be wrong, its decision to exempt the Superferry is voided. And without any decision on the books, the Superferry is running without any environmental review, causing a new 120-day clock to start.
"Those exemptions were invalidated," said 1000 Friends' lawyer, Greg Meyers. "It was as if the determination never existed."
Valenciano told the lawyers to have briefs on the 120-statute filed by 11 a.m. today and that he will have a decision by this afternoon.
Judge Randal Valenciano
» Position: Chief judge, Kauai Circuit Court
» Appointed: By Gov. Linda Lingle, April 2007
» Former jobs: Private practice, 1996-2007; Kauai County deputy prosecutor; public defender
» Political office: County councilman, 1990-2002; unsuccessful candidate for Kauai mayor in 2002
» Education: Waimea High School, University of Oregon, University of Washington School of Law
» Other activities: Former president, Friends of the Kauai Drug Court; secretary of the Kauai Officials Association; member of the Pua Loke Community Association
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Alakai set to sail to Maui to return vehicles
The Hawaii Superferry's Alakai will make a one-time round-trip voyage from Oahu to Maui tomorrow to reunite passengers with their stranded vehicles.
A Maui Circuit Court judge has approved the voyage solely to return vehicles left on Oahu or Maui to their owners.
The Alakai will leave Honolulu Harbor at 11 a.m., arrive at 2 p.m. in Kahului, depart at 3 p.m. and return at 6 p.m. to Honolulu. Vehicles must be driven on and off the vessel by the registered owner or a driver designated by the owner with a notarized vehicle movement authorization form. (Forms can be downloaded from www.Hawaii- Superferry.com or picked up at port offices. Free notarization is available at ReMax real estate offices.)
The company will reimburse customers who cannot travel on this date and must use alternate means of shipping their vehicles.
Maui resident Thomas Mate was en route to Kauai with his fiancee and 4-year-old son and was stranded on Oahu for four days last week. Superferry flew them to Maui at no charge, but their sport utility vehicle was stuck in Honolulu. They will get their SUV back tomorrow, but made do with a rental car paid for by Hawaii Superferry.